SWP Research Paper Johannes Thimm From Exception to Normalcy The United States and the War on Terrorism Stiftung Wissenschaft und Politik German Institute for International and Security Affairs SWP Research Paper 7 October 2018 Abstract The war on terrorism waged by the United States is in its 17th year. To a large extent, it has defined three very different presidencies and no end is in sight. In the time since the terrorist attacks of September 11, 2001, the initial shock has gradually given way to a new normalcy. The time seems right to assess the US’s approach to combating terrorism – an assessment this study attempts to provide. A key finding of this report is that the global war on terror is not only continuing, but that it is also becoming increasingly difficult to end. What began as a secret war is now firmly established US policy, both legally and institutionally. In the early years of the global war on terror, US methods were strongly criticized by Europe’s governments. This criticism has now largely ceased. Detention without a trial, targeted killings, mass surveillance – all of this is at least tolerated, and in some cases even supported. This development is problematic in several respects. Its consequences include the systematic erosion of human and civil rights; the concentration of decision-making power in the hands of the executive at the expense of the separation of powers principle; and the expansion of the national security state. Since victory is unlikely, the question of whether to continue support- ing the United States on its present course is all the more urgent. SWP Research Paper Johannes Thimm From Exception to Normalcy The United States and the War on Terrorism Stiftung Wissenschaft und Politik German Institute for International and Security Affairs SWP Research Paper 7 October 2018 All rights reserved. © Stiftung Wissenschaft und Politik, 2018 SWP Research Papers are peer reviewed by senior researchers and the execu- tive board of the Institute. They are also subject to fact- checking and copy-editing. For further information on our quality control pro- cedures, please visit the SWP website: https:// www.swp-berlin.org/en/ about-swp/quality- management-for-swp- publications/. SWP Research Papers reflect the views of the author(s). SWP Stiftung Wissenschaft und Politik German Institute for International and Security Affairs Ludwigkirchplatz 3–4 10719 Berlin Germany Phone +49 30 880 07-0 Fax +49 30 880 07-200 www.swp-berlin.org [email protected] ISSN 1863-1053 (Revised and updated English version of SWP-Studie 16/2018) Table of Contents 5 Issues and Conclusions 7 Introduction: Continuity and Change in the Fight against Terrorism 9 The Normalization of the Global War on Terror 9 A resolution authorizing the war on terrorism 10 A small circle of decision-makers 10 Covert operations as a defining characteristic 11 Rising criticism leads to some limited reversals 13 The Evolution of the War on Terror under Three Presidents 13 The detention and interrogation program 13 Torture in the name of fighting terrorism 16 Opposition from civil society and the other government branches 18 Ending torture under Obama 19 Indiscriminate surveillance of communication 19 Overview of the legal basis of the surveillance regime 20 The evolution of surveillance since 9/11 21 A changed debate after the Snowden revelations 23 Targeted killing 24 Origins and evolution of the practice of targeted killing 25 Greater transparency and more killings 27 First trends under Trump 29 The National Security State and the Power of the Executive 29 Expansion of the national security state after 9/11 30 State of exception 31 Secrecy 34 Impunity 36 Conclusion: The Cost of the Forever-War 39 Abbreviations Dr. Johannes Thimm is a Senior Fellow in The Americas Division at SWP Issues and Conclusions From Exception to Normalcy The United States and the War on Terrorism The war on terrorism waged by the United States (US) is in its 17th year. To a large extent, it has defined three very different presidencies and no end is in sight. In the time since the terrorist attacks of September 11, 2001, the initial shock has gradually given way to a new normalcy, and the time seems right to assess how the US’s approach to combating terrorism has affected the rule of law, democracy, and human rights over almost the past two decades. Such an assessment is advisable for three reasons. First, the policies for combating terrorism have under- gone a number of changes. The methods have been continually changed, new ones introduced, and ex- isting ones abolished; the legal framework has been adapted; and the fight has been extended to new terrorist groups. This study should help in keeping track of the many twists and turns and to clarify the current situation. Second, the methods being used to combat terrorism have since found imitators. Not only do autocrats of all kinds justify human rights abuses and the persecution of political opponents as being anti-terror measures, European democracies have not remained unaffected by these changes either. Whereas in the early years following 9/11 European governments had repeatedly and clearly voiced criticisms of some of the controversial methods used for fighting the war, these have now largely ceased. Detentions without trials, targeted killings, indiscriminate surveillance – all of this is at least tolerated, if not supported. Moreover, European governments are following the US example in many respects. In France, a constitutional state of emergency was in force for almost two years after a series of ter- rorist attacks in 2015; subsequently, many of the powers then issued for the police and military have been permanently enshrined in a new anti-terror law. Britain had one of its citizens killed in Iraq using a drone attack without even attempting to provide any legal justification. And in almost all European coun- tries, the security agencies are constantly demanding new powers to monitor communications. All this leads to a normalization of problematic practices without sufficient discussions of the consequences. SWP Berlin From Exception to Normalcy: The United States and the War on Terrorism October 2018 5 Issues and Conclusions Third, the presidency of Donald Trump has given sion of human and civil rights; the concentration of the issue of the fight against terrorism new urgency. decision-making power in the hands of the executive Trump inherited from his predecessors a remarkable at the expense of the separation of powers principle; degree of power in the field of security policy. In con- and the expansion of the national security state. The trast to Barack Obama, however, there is no guaran- national security establishment requires considerable tee that he will deal with it cautiously. There is much resources and has itself become a powerful actor in talk of Trump’s control over the metaphorical red US security policy as a type of “intelligence industrial button of the US nuclear arsenal. On the other hand, complex.” Despite some policy revisions and the dis- his power over the joysticks that steer Predator drones continuation of the worst excesses – especially the equipped with Hellfire missiles attracts relatively use of torture – the measure of what is considered little attention. acceptable in the name of security has permanently A key finding of this report is that the global war shifted over the last two decades. Legal and moral on terror is not only continuing, but that it is also norms that were long regarded as undisputable in becoming increasingly difficult to end. What began the US have suffered lasting damage. as a secret war of a (strongly ideological) presidency is The effectiveness of the war on terror remains dis- now firmly established as US policy, both legally and puted. The aim of the present analysis is not to meas- institutionally. The fight against terrorism by military ure the war’s effectiveness because, in order to do so, means continues, with the aim of preventing terrorist it would be necessary to argue counterfactually as to attacks entirely. The logic of war and prevention has whether there would have been less terrorism today led the US to take a number of controversial measures if the war had not been conducted in this way – a after 9/11. In the context of a partially secret deten- methodologically questionable undertaking. How- tion and interrogation program, alleged terrorists ever, it seems doubtful whether we are closer to the were abducted, arrested, and tortured in order to ob- goal of defeating terrorism today than in 2001. Since tain information about planned attacks. The secret victory is unlikely, the question of whether to con- prisons are now closed and torture has ceased, but the tinue on the present course is all the more urgent. practice of detaining suspects in Guantánamo for an There have been a few changes in US policies that unlimited period without trials continues. Targeted have provoked criticisms from European governments killings of terrorist suspects, often by drones, have after 9/11, however the issue has lost urgency. Be- been expanded due to greater technical possibilities cause Europe held President Obama in high regard, and are a rarely questioned part of this war. When he was not under the same pressure to justify himself the public learned of the indiscriminate surveillance as his predecessor, although he continued many of of the communications and online activities of Ameri- the controversial measures. Now, with Donald Trump cans and foreigners and its questionable legal basis, in the White House, European governments have there were some minor corrections. However, the far- other concerns and do not want to open up another reaching powers of the intelligence agencies remained area of conflict with Washington.